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Safety notices

6th May 1993, Page 42
6th May 1993
Page 42
Page 42, 6th May 1993 — Safety notices
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Which of the following most accurately describes the problem?

Breaches of the health and safety rules attract stiff penalties. Do you know the difference between an Improvement Notice and a Prohibition Notice?


very haulier pays lip service to health .ind safety; if nothing else a hazardous workplace is inefficient. Aside from any moral question of taking tare of employees' wellbeing, injuries at work hit productivity, and could lead to expensive litigation.

But some operators may not realise that the health and safety rules have teeth. Local authority enforcement officers have statutory rights of entry, investigation and seizure where they think the Health & Safety at Work Act 1974 has been broken.

If they find a problem they can force offenders to take remedial action with an Improvement Notice or a Prohibition Notice.

An Improvement Notice is served when enforcement officers believe an operator is contravening the regulations—or that he has already done so and is expected to do so again.

The notice will specify which provisions of the legislation have been broken, and will require the breach to be rectified within a specified time. It will also say why the officer feels there is a problem.

Many of these notices refer to technical health and safety matters; the company can work as normal while the problem is being rectified.

A Prohibition Notice is a more serious matter which is only served if an enforcement officer believes there is a risk of serious personal injury.

He can issue such a notice even if the operator concerned is not breaking a specific health and safety regulation.

Before the Consumer Protection Act 1987 the risk had to be imminent—this restriction was removed by Schedule 3 of the CPA. An Enforcement Notice must specify the problem, and if there has been a contravention of a particular regulation, it must say which one.


Unlike an improvement Notice, once an Enforcement Notice is served the dangerous activity must stop until the problem has been solved. For example, if a workshop activity poses a risk of serious personal injury, then that activity must cease until the risk has been rectified. In most cases the whole workshop need not be shut down.

Obviously such a move can have major financial repercussions, particularly because it is immediate; no time is allowed to rectify the problem. Enforcement Notices may say what action must be taken to solve the problem, but the enforcement officer does not have to do this. In this case the operator may have no way of knowing if any remedial action is effective enough to lift the prohibition until the site has been inspected by the enforcement officer.

In fact clear instructions are usually given, including the phrase "so far as reasonably practical".

This means that the cost of eliminating the risk must not outweigh the chances of the risk occurring. For example, if the risk is insignificant when compared with the cost of avoiding it, the operator can discharge the liability upon him as being "unreasonably practicable".

There is an appeal system against Enforcement Notices. Appeals must normally be lodged with an Industrial Tribunal within 21 days. The main grounds of appeal are: • That an Enforcement Officer has exceeded his powers; • That the alleged breach is admitted, but the steps advised for it to be corrected are not reasonably practicable; • That the breach is so insignificant that the notice ought to be cancelled; • That the enforcement officer has misrepresented the law.

The most common basis for an appeal is that the proposed solutions are not "reasonably practicable"—but the success rate is very low and costs can be awarded against the appealing party.

Most appeals are withdrawn before the hearing, possibly following negotiation with the enforcement officer or because of the risk of costs being awarded against the defending party. The notice stays in force until the appeal has been heard.

This may not sound too encouraging for a haulier who has had part of his operation shut down and cannot afford to rectify the situation, but the appeal procedure can be effective.

Tribunals take their job seriously and if the enforcement officer has been unreasonable it will find in favour of the operator. In this case an enforcement notice can be withdrawn or modified, and costs may be awarded against the local authority.

However operators breach prohibition notices at their peril—the maximum penalty for breach of a notice now stands at £20,000 and up to six months in prison. C by Robert Chapman ,Irer, Chapman rs a partner at Leeds.based ononertial law firm Etersheds. Hepworth and Chadwick.


Organisations: Industrial Tribunal
People: Robert Chapman
Locations: Leeds

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